Where do we go from here?

Many societies seem to live in a state of illusion about their political systems. Mention has already been made of the way dictatorial Roman emperors pretended that the actual governing body was ‘the Senate and People of Rome’, and how in modern times communist dictatorships describe themselves as democratic republics, when they are neither democratic nor republics. Similarly, in 1867 people still talked as if the British Constitution were based on the separation of the executive, legislative and judicial functions whereas, as Walter Bagehot pointed out, that division no longer existed. The system which had developed was something quite different, depending not on the separation but on the merging of the legislative and executive functions in the Cabinet. A single chamber, the House of Commons, both chose the executive government-acting as the electoral college, in the American usage-and also acted as the key part of the legislature. Bagehot thought this arrangement distinctly superior to the American model of the separation of the executive and legislative powers.

Although Bagehot may have lost most of his clothes, he still has a very large empire. At the end of the twentieth century people were still talking as if the system of responsible government described by Bagehot still survived, despite the fact that the growth of party discipline since Bagehot’s day has destroyed that system. Except in conditions of minority government-uncommon in the four countries we are dealing with-a Cabinet is responsible to the government party, not to the parliament. Under a coalition the result is still party government, but with the program being distorted by the policies of a minor group, policies which would probably not be supported by a majority of voters or by a majority of MPs. A minority government survives by doing deals with minor parties and Independents so that they pass important legislation and key confidence votes, and in return they are given some influence on particular pieces of legislation which are in their areas of interest.

All lower houses have lost their role as legislatures, for with modern party discipline it is impossible for one house to be both the decisive chooser of the government and an effective controller of its proposed legislation and its actions. The result is an elective dictatorship, with all the dangers that entails. An upper house, where one survives, may act as a check on a party government, but only if the upper house is not controlled by the government party and its powers are not emasculated. It is a constant aim of a party government to gain control of the upper house so as to make it a compliant legislative rubber-stamp, or if party control is not possible to use every available threat-abolition, removal of powers, ridicule-to prevent it resisting or even seriously questioning the will of the ‘democratically elected government’.

Granted that we no longer have effective responsible government, what do we do about it? Let us look at the Australian Federal Parliament-one of the most advanced (or degenerate, depending on the point of view) forms of party government-to see if there are any ideas from the other nineteen parliaments which might usefully be adopted, and what further changes would be necessary to restore truly responsible government.

In considering possible reforms, it is necessary to keep in mind the constraints. The first is that there is no likelihood of acceptance of a radical change in the political structure. There may be dissatisfaction, even disgust, with some aspects of politics and politicians, but there is little general interest in political theory, and proposals for massive change would be met with apathy or resistance. Any changes will have to be incremental, keeping the same outward structures while subtly changing their nature, as has in fact happened to the structures of responsible government since Bagehot’s day. It is also vital that the members of the parliament should accept the framework within which they are to operate.

Parliamentary democracy is a fragile instrument, and can easily be disrupted or destroyed if any substantial body of its members does not accept its rules. The disruptive activities of the Irish members in the British House of Commons in the late nineteenth and early twentieth centuries, the destruction of the Weimar Parliament by the Communists and Nazis before the rise of Hitler, and the corrupt impotence of many of the parliaments in newly independent countries are vivid reminders of the dangers.

The second constraint is that although the excesses of party discipline have destroyed responsible government, it would not be possible to eliminate political parties. There is no way that politicians could be prevented from joining together in groups, agreeing to take common positions on certain issues. Besides, without some cohesion between members any parliamentary system would soon become unworkable. What must be done is to control abuses of party power and to devise a system of government which would make excesses by party zealots less likely.

Any attempt to restore responsible government will inevitably meet with resistance from those who rather like an elective dictatorship. There is a certain attraction about an elected government being able to govern without having other bodies quibbling and sometimes frustrating its actions, but the dangers of an elective dictatorship are great, as have already been described in Chapter 11.

With these constraints in mind, let us look at possible reforms to the Australian federal political system.

The House of Representatives

Electoral college

None of the twenty parliaments has been able to solve the problem of having a single body both choose the government (the electoral college role) and also act as the critical scrutineer of its administration and its proposed laws. Some of the other lower houses perform the electoral college role well; none performs both roles well; some perform neither well.

The Australian House of Representatives has performed reasonably well as an electoral college. It has made a decisive choice of government after each election since the Second World War. That is not to say that its performance has been perfect. Although its system of drawing electorate boundaries is on the whole excellent, the use of single member electorates has sometimes resulted in the election of governments which would not, by a narrow margin, have been the preferred choice of a majority of voters. This has happened in five of the 22 elections since 1945. The voting system-preferential and compulsory-has not been copied outside Australia. Preferential voting is probably desirable as it tends to produce MPs who are preferred-or perhaps least disliked-by a majority of their voters, while compulsory voting may make a decisive election result more likely by making it more difficult for minor party candidates or Independents to be elected. Both are therefore just worth retaining.

Life of parliament

The life of the Australian Parliament is three years, and can be cut even shorter at the whim of the prime minister, for his political advantage. Short parliaments inevitably lead to short-sighted governments. Of the other nineteen parliaments, only New Zealand and Queensland have three year lives. In the other five Australian states it is four years, and in the remaining twelve parliaments, five years. The life of the Australian Parliament should be increased to at least four years.

Only one parliament-that of New South Wales-has taken action to remove the traditional but now totally unjustifiable power given to prime ministers and premiers to cut short the terms of their parliaments to suit their political advantage. The term of the House of Representatives should be cut short only if no government possessing the confidence of the House can be formed.

Australia is the maverick among the national parliaments in that there is no arrangement for the life of the Parliament to be increased if social conditions-war or other turmoil-made an election highly undesirable. The UK Parliament can extend its life indefinitely by a simple majority of each house, and has done so in each World War. The life of the Canadian House of Commons can, by a two-thirds majority, be extended indefinitely ‘in time of real or apprehended war, invasion or insurrection’, and the New Zealand House of Representatives can extend its life by a three-quarters majority.

The Australian Parliament would require a constitutional amendment if it wished to extend its life, and a referendum campaign during a national crisis would probably be as disruptive as an election campaign. Australia should follow the lead of the other national parliaments, and make the necessary amendment to the Constitution before the turmoil strikes. What is needed is for the circumstances under which the Parliament may extend its life to be defined in the constitutional amendment. The constitutional amendment should also ensure that the parliamentary majority approving such action should be sufficient to ensure that both the government and the alternative government agree with it, and the permissible length of the extension should be laid down (though the extension could be renewed). The Canadian model seems suitable, though the three-quarters majority needed in New Zealand is preferable, for it is not unknown in Canberra for the government party to have more than a two-thirds majority.

Legislative role

The House of Representatives has almost totally abandoned the legislative role. Bills are now very rarely referred to committees for public hearings to take evidence from the minister concerned, bureaucrats and informed members of the public. The number in the 1990s was less than three a year. Nearly three-quarters of the bills are not considered in detail at all, and bills are frequently forced through the House with only a few minutes for all stages. Successful opposition amendments are rare in the House of Representatives-over an eleven year period between 1976 and 1987, under two different governments, when nearly 2000 bills were passed, not a single opposition amendment was accepted to any of them.[105]

No other national parliament treats the legislative role with such contempt as does the Australian House of Representatives. Canada, New Zealand and some of the Canadian provinces regularly refer bills to committees which question bureaucrats and receive input form the public, but cross voting is rare. The bills emerge from the committees in the form the government wants, though ministers sometimes accept suggestions made in submissions from the public.

In the UK it is very rare for a bill to be sent to a committee to hold public hearings, but cross voting is not uncommon in the House at the committee stage of a bill. This cross voting is partly because government party MPs will not have had a chance, as the MPs in other parliaments have, to criticise the bill before it is introduced into the Parliament, and partly because party discipline is looser at Westminster than elsewhere. This is possibly because of the sheer number of MPs, for the UK House of Commons is twice the size of the Canadian House of Commons and four times the size of the Australian House of Representatives. The cross voting at Westminster is rather erratic. Sometimes one major party has cross voters, sometimes the other, rarely both together, and the result is that bills are not really examined and amended on their merits. It must be concluded that, while current party discipline continues, there are no procedures in use in the other national parliaments which would, if adopted, make the Australian House of Representatives into an efficient legislature.

Australia is fortunate to have a strong upper house available to take over the legislative role abandoned by the House of Representatives, but care must be taken that the Senate (with only 76 senators) is not overloaded with investigations into non-controversial bills with the result that committee effort is simply not available for important, controversial investigations. Something like 90 per cent of government bills are unopposed, but it is important that they should be carefully examined to make certain that accidental flaws do not slip through. These bills could usefully be examined by committees of the House of Representatives, investigating matters raised by the Senate Scrutiny of Bills Committee and seeking input from the public. Because the bills are non-controversial, the committees should be able to act without divisions on party lines.

The Australian House of Representatives has been ruthless in its use of the ‘guillotine’, by which the government limits the time for debate on the various stages of its bills, sometimes allowing ridiculously short periods. The best solution is that of the Canadian House of Commons where, if agreement cannot be reached by the various parties as to the time to be allowed for each bill, the government may move the guillotine-but not less than one sitting day must be allowed for each stage of the bill. It is most unlikely that such a procedure would ever be adopted in Canberra.

There is a better prospect of better control of ‘gag’ motions-the motion that the question being debated be put to an immediate vote. The Australian Parliament is the only one of the national parliaments which permits such a motion to be moved in the middle of an MP’s speech. This clearly should be stopped. In the UK and New Zealand the Speaker has the discretion not to put the gag motion if useful debate is still going on, while in Canada the gag motion may be debated, with MPs who have already spoken in the main debate permitted to speak again, so it is not a very attractive way for a government to limit debate. The UK and New Zealand solution would seem to be suitable for Australia.

Standard of debates

Something should certainly be done about the standard of debate in the House of Representatives. All too often debates are a series of prepared statements rather than a genuine discussion, the only departures from the prepared statements being personal abuse. Two parliaments have taken some action to improve the situation. In the UK House of Commons an MP who is speaking may yield to an ‘intervention’ from another MP, who, if the original MP yields, may make a brief statement or ask a question on what the MP has said. This creates genuine debate, but it would never be accepted in the parliaments which have fixed times for speeches, which all the parliaments except Westminster have. In the Canadian House of Commons a ten minute ‘question and comment’ period is usually allowed at the end of each twenty minute speech, with the original MP being given a right of response to each question or comment. Occasionally the Speaker has to interrupt an MP who is speaking for too long or is not being relevant, but this has not been a major problem. It is an excellent way of creating a genuine debate, and the Australian Parliament should certainly copy it.

Governments by-passing the parliament

Action has been taken by one national parliament to assert its control over an important policy area where the government in the past simply by-passed the parliament. Canada has passed legislation which requires the government to seek the approval of parliament for the deployment of the armed forces for warlike operations, and this should certainly be copied by the Australian Parliament. None of the national parliaments has yet taken action to require that the ratification of treaties should be approved by the parliament, and perhaps Australia could set an example in this.

All four countries have had problems with political bodies-the European Union in the case of the UK, the United Nations in the case of the other three-setting up human rights organisations which supervise the legislative behaviour of their member nations in relation to human rights. The European Convention came into force in 1953, and the UK is a member. Possible human rights violations are considered by the European Commission of Human Rights, and those which cannot be settled amicably may be considered by the European Court of Human Rights. Several times judgments of UK courts based on their common and statute law have been overruled by the European Court using the European Convention, and to avoid this problem the European Convention has been incorporated into UK domestic law.

The UN has a somewhat less legalistic system. Two human rights covenants were unanimously adopted by the UN General Assembly, and four more conventions have been spun off. The Human Rights Committee considers complaints about human rights, and after discussions with the government concerned it sends its conclusions to the government and the complainant. If its conclusions are adverse, the government is required to adopt such legislative or other measures as may be required to correct the problem.

Not all the countries concerned are happy to have their laws interpreted by a foreign body. Canada has effectively incorporated the International Covenant on Civil and Political Rights into its Constitution, so those human rights issues are interpreted by its courts, and adverse UN Human Rights Committee findings would be much less powerful if the problem had already been considered by the Canadian Supreme Court and it had come to a different conclusion.

It would be difficult for Australia to adopt the Canadian model, because of the great difficulty in making amendments to the Australian Constitution. The UK solution would however be perfectly adequate. If the federal Parliament passed acts incorporating verbatim all the human rights covenants and conventions which Australia has ratified, the courts would be given the same power as those in Canada. If the Parliament is not prepared to have these covenants and conventions part of Australian law, they should not have been ratified in the first place. The fact that these acts would not be entrenched would not be a problem, for it is very unlikely that the federal Parliament would pass any act which specifically evaded the acts incorporating UN covenants and conventions to which Australia was a party.

Delegated legislation

The important field of delegated legislation is totally ignored by the House of Representatives. In all the other bicameral parliaments there is a joint committee from the two houses to oversee delegated legislation. In Australia, however, the performance of the Senate Regulations and Ordinances Committee has been so satisfactory that there would be nothing gained, and perhaps much lost, by involving the House of Representatives.

Questioning the government

An Australian government’s attitude to its accountability to the lower house was epitomised by the claim by Deputy Prime Minister Keating that question time was not a right, it was a privilege granted by the government. With such an attitude, it is not surprising that question time is the near farce it is. Opposition questions are rarely answered, and personal abuse is common. Part of the problem is the absence of a strong, impartial Speaker in charge of proceedings. The UK House of Commons provides an admirable example of an independent Speaker, who presides over the House with firmness and impartiality, particularly at question time. Decisions of the Speaker are not disputed, and he has much more discretionary power than the Australian Speaker.

New Zealand has developed a much better question time than the Australian House of Representatives. It is based on the UK model, where written notice is given of a question, the minister gives a prepared answer, and then the Speaker permits supplementary questions-alternately from each side of the House-until in the Speaker’s opinion the subject is exhausted. In New Zealand the Speaker is as much a party figure as he is in Australia, so if New Zealand can make such a question time work Australia should be able to do so also.

Written questions on notice are a much greater source of information than is question time, and Australia lags badly behind the other countries in the promptness with which such questions are answered. This should be rectified. Petitions from voters are also treated with contempt. They are read out by the Clerk in the House of Representatives, but the government does not reply at all. The Canadian model, by which the government has to reply within 45 days, usually by tabling an answer, should be adopted.

Monitoring government administration

The Australian House of Representatives now has a system of ‘subject’ committees to watch over the activities of government departments. All the committees are chaired by government party MPs and all have a government majority. They certainly very rarely investigate matters which the government does not want investigated. Worse still, the committees may be given tasks by ministers, so that the committees are effectively responsible to the ministers who are supposed to be responsible to them.

The system of ‘subject’ committees is similar in all the four national parliaments and all suffer from the same limitations. They are useful at investigating matters the government wants or is prepared to have investigated, but the government party majority is nearly always able to head off any inquiries which would seriously embarrass the government. The Australian House of Representatives should adopt the UK procedure of allocating the chairs of committees among the parties on a fair basis, and should certainly remove the power given to ministers to direct the activities of the committees. This would not make much practical difference-ministers could presumably persuade their colleagues, who nearly always have majorities on the committees, to take the necessary action-but it would remove a public affront to the concept of responsible government.

How useful is the House of Representatives?

It is not that the Australian House of Representatives performs no useful functions apart from its electoral college role. It provides a forum (for about 70 days a year) in which the alternative government and the minor parties can question the government, and (if they choose to) announce alternative policies. It also provides a forum for campaigning for the next election, a campaign which usually begins at the first meeting of the House of Representatives after the previous election, though whether this is beneficial is extremely doubtful.

Committees of the House may also conduct inquiries into matters about which the government wishes advice, or about which the government wishes to try to soothe public disquiet. Political inquiries are sometimes both cheaper and more effective than royal commissions or similar inquiries.

The fact remains, however, that the House of Representatives is certainly not an effective legislature.

The Senate

Although the Australian Senate is the most powerful and effective of the eight upper houses being considered, there are still lessons which can be learned from other parliaments. Only one of the eight upper houses-that of Western Australia-is always fully elected at the same time as its lower house. Two of the other upper houses are non-elective, and the other five are designed to be continuing (only partly elected at each general election). Of the six elected upper houses, four use proportional representation, but all of these use versions which give excessive power to the party machines. The Senate should learn from the proportional representation system used for the Tasmanian lower house, for the use of that system (Robson rotation) would permit voters to choose a party and at the same time select which of that party’s candidates they wished to elect.

The Senate has moved, rather hesitantly, to take over some of the roles abandoned by the House of Representatives. The great strength of the Senate is that, since the introduction of proportional representation in 1949, the government party has had only brief periods with an absolute majority, and since the increase in the size of the Senate in 1985 it is unlikely that any government will have such a majority in the future. The Senate has never been a states’ house; it was a party house from the outset.

Representation

The Senate’s electoral system, which was possibly justified for its original roles of states’ house and house of review, is inappropriate for a legislature. Equal representation for the states regardless of population introduces distortions, though these are not as serious as might be thought, for voting patterns across Australia are remarkably consistent, provided one counts the Liberal and National parties as a coalition. The nationwide consistency of party voting is much greater than in Canada or the UK, for instance. It is fortunate that this is so, for it is highly unlikely that the voters in the less populous states would ever support a referendum to amend the Constitution to reduce their representation in the Senate.

There can be no doubt that the proportional representation voting system used for the Senate results in a chamber that represents the balance and variety of political opinion much more accurately than does the House of Representatives. Nevertheless the continuing nature of the Senate, achieved by electing half of the senators every three years, is clearly inappropriate if the Senate is to take over the legislative role abandoned by the House of Representatives. For the Senate to carry out that role it would be important for the whole Senate to be elected at the same time and for the same term as the House of Representatives, the electoral college; and that term should be a fixed four years.

Handling legislation

Despite the fact that it is certainly not a government rubber-stamp, the Senate’s handling of government bills is far from rigorous. It has done some useful work in setting up a Scrutiny of Bills Committee to examine the legal detail of bills; the committee has raised queries on about 40 per cent of bills. The Senate has also taken action to prevent or control abuses of power by the government such as ‘legislation by press release’ and the failure to proclaim acts passed by the Parliament. But only about a third of the government bills are sent to committees to hear evidence from the bureaucracy and the public, and the Senate has often accepted absurdly short time constraints on these hearings. Moreover, the responsible minister, if a member of the House of Representatives, does not appear before the committee to answer questions from the committee about the proposed legislation. Three of the upper houses-those of Canada, New South Wales and Victoria-permit lower house ministers to attend the upper house to explain their bills and to answer questions on them. Although the procedure has been rarely used, it should be adopted and used by the Australian Senate.

In its legislative role, the Senate should deal with all controversial bills, referring them to committees for input from the public, except for genuinely urgent bills. It would also have to deal similarly with any non-controversial bills not dealt with in a similar way by the House of Representatives. The Senate should also insist on adequate time being available for a committee to consider a bill properly. If a minister from the House of Representatives refuses to appear before a committee to answer questions about his or her bill, the committee should set the bill aside until the minister does appear.

The most serious defect of the eight committees available for the consideration of legislation is that all are chaired by government party senators, and the government party has control of all of the committees through the chair’s casting vote. Chairs tend to regard their office as a stepping stone to becoming a minister, and as a result many of them try to get government legislation through quickly, without any amendments if possible, an attitude quite incompatible with serious, detailed examination of proposed legislation. The attitudes of committee members on key issues are determined by party meetings, at which senators are outnumbered two-to-one by MPs. The only way to overcome this problem is to remove ministers from the Senate, so that the efforts of senators would be devoted not to becoming ministers, but to improving the performance of the Senate as a legislature.

If there are to be no ministers in the Senate, the handling of government bills in the Senate should be done, by invitation, by ministers from the House of Representatives, although of course they would not be permitted to vote. Canada and the states of New South Wales and Victoria permit ministers to do this, but the power is rarely used.

Prevention of the by-passing of parliament

The Senate should negotiate with the government to ensure that all treaties are submitted to the Parliament for approval before their ratification, and that an act similar to that in Canada is passed to ensure that the Parliament is fully involved in decisions to commit the defence force to armed conflict or to a position of potential danger.

Delegated legislation

Unlike its handling of government bills, the Senate’s examination (and, where appropriate, the disallowance) of delegated legislation is excellent. That is not to say that there is nothing that could be learned from some of the other parliaments. The Senate should press the government to adopt the Canadian model of community involvement in the drafting of its regulations, and to prepare impact analysis statements to accompany approved regulations. The Senate should also press the government to adopt some of the procedures being evolved in the Australian states for the systematic repeal of outdated delegated legislation, and also the New Zealand arrangements which permit the disallowance of a part rather than the whole of a regulation, if that is all that is needed.

Resolution of deadlocks over legislation

If the Senate continues to develop as a legislature, deadlocks between the two houses (or, more accurately, between the government and the Senate) over amendments or rejection of bills will become increasingly common. Many of these deadlocks could be resolved by negotiations between delegates from the two houses, a common practice in the United States, but some deadlocks will be intractable. The present method of resolving them-a dissolution of both houses followed, if the dispute is continued in the new Parliament, by a joint sitting of the two houses-simply does not work. The cause of the election is submerged in the election campaign, and it would be a foolhardy person who assumed that the result of the election was a decision by the voters on the deadlock issue.

Only five of the eight bicameral parliaments have procedures for the resolution of legislative deadlocks. In all of them, the decision to attempt to resolve the deadlock rests with the government. In Canada, the government can appoint four or eight additional senators, a solution which would be quite inappropriate for an elected upper house. Three others-Australia, Victoria and South Australia-provide for the resolution of a deadlock by an election for both houses. This has proved to be a very unsatisfactory solution. Besides, it is not even an effective threat for the federal government to brandish at the Senate for, with proportional representation, nearly all the senators can be sure of re-election, provided they have kept the support of their party machines. The minor parties, too, who would have to have been part of the deadlock, would actually benefit from the dissolution of the whole Senate, for the quota for election would be nearly halved and their numbers would almost certainly increase.

New South Wales has potentially the best solution. It has provision for a referendum to resolve a deadlock over a particular piece of legislation, but the system is so ponderous that it is not really useful. What is needed is the prompt recognition of the existence of a deadlock and the availability of a prompt resolution of it through a referendum. A government will not opt for a referendum unless the issue is important and there is general community support, for referendums are often lost, and a defeat is politically embarrassing for a government.

Monitoring government administration

Turning to the question of the monitoring of government administration, the Senate has a comprehensive system of eight references committees, which are certainly prepared to tackle matters the government does not wish to have investigated. All eight committees have a non-government senator in the chair, and with the chair’s casting vote, all have a non-government party majority. (In 1999, for example, six of the chairs were held by Labor Party senators, and two by Australian Democrats.) In the 1990s the committees were increasingly being used for political harassment of the government, which is valuable but which can be overdone. In particular the routine supervision of government activities should not be allowed to suffer. The committees must take much more interest in the annual reports of government business enterprises and other non-departmental government bodies, summoning the board or the chief executive to appear before them if there are any concerns. At the moment such bodies are virtually unsupervised by the Parliament.

It is an obvious cause of concern that in nearly all of the parliaments the government controls the level of support provided to committees monitoring the government. Only in the House of Commons at Westminster has a satisfactory system evolved. A House of Commons commission prepares the estimates, which are not subject to Treasury ‘cash limits’. There is only one minister (the Leader of the House) on the commission. If there is fundamental disagreement between the commission and the Treasury it is resolved on the floor of the House when the estimates are voted, and British MPs have shown themselves willing to defy their whips on such matters. The Australian Senate should be prepared to behave similarly.

Forcing premature elections

The Senate has twice used its power to force a premature election by denying supply to the government, in 1974 and 1975. Although the Senate undoubtedly has the constitutional power to usurp the electoral college role of the House of Representatives in this way, there is nothing to be said in favour of its exercise. Various solutions have been tried to prevent upper houses forcing governments to premature elections by blocking supply. The House of Lords has had its power restricted so that it cannot reject or unacceptably amend a money bill. In Canada the Senate cannot block supply, because the government can grant itself supply under the Financial Administration Act, while in New South Wales the Legislative Council cannot reject or amend any bill dealing with the ‘ordinary annual services of the government’.

There are objections to all three solutions. The definition of a ‘money’ bill in the UK Parliament is far wider than is necessary to prevent the Lords forcing an election. The Canadian system is a clear breach of the principles of responsible government. The New South Wales solution is excellent in principle, but the expression ‘ordinary annual services’ is not defined nor are the appropriations for such services presented in a separate bill.

The most effective method of preventing an upper house usurping the electoral college role would be to make the term of parliament fixed. There would then be no point in an upper house blocking supply if there could not be an election. It is just possible, perhaps, that an upper house might block supply, demanding that the government pass an artificial vote of no confidence in itself, and as a government cannot continue without a vote of supply (except in Canada) it might yield. If that is a serious concern, the best solution is that of New South Wales, although ‘ordinary annual services’ would need careful definition.

Length of sittings

There are two important reasons why the Senate has as yet failed to develop fully as a legislature, despite the gaping void left by the House of Representatives. The Senate sits far too infrequently-only half as many days a year as does the House of Lords-and as a consequence much work is rushed or neglected. The Senate should have much longer sessions, perhaps doubling the present number of sitting days, so as to complete its business in an orderly fashion. In the past the Senate has permitted its sitting patterns to be dictated by the government, largely to suit the convenience of ministers. Provided they can get their legislation through, their view seems to be that the less the Parliament sits the better. The House of Representatives provides political opportunities for the opposition, but at least that House is under government control. The last thing the government would want would be for the Senate, not controlled by the government, to sit for long periods while the House of Representatives was not sitting. Ministers in the Senate would be questioned on all aspects of government policy, and the opposition and the minor parties would have a tremendous opportunity to gain publicity.

Ministers in the Senate

Senate ministers are the second and more serious obstacle to Senate development. The task of a Senate minister is to get government legislation through the Senate with no delay, no alteration and no embarrassment, and to head off any awkward inquiries. They naturally do not welcome procedures in the Senate which would make their task more difficult. Nor is the opposition any more enthusiastic, for they hope to be in government themselves one day, and do not want any new restraints on their power when their turn comes.

The problem is that the aspirations of senators are skewed in the wrong direction, towards membership of the body they are supposed to be critically reviewing. The Senate will never be a fully effective legislature while it continues to provide ministers to the government. It is not only the presence of ministers which affects the performance of the Senate as a legislature. Senators from the major parties who are not ministers tend to shape their actions so that their leaders and colleagues will see them as loyal and effective party members who are worthy of promotion, and such behaviour is rarely compatible with being a legislator.

If ministers are not to be drawn from the Senate, it would be important that major legislative figures in the Senate be appropriately recognised, for if they are not given status and at the same time are denied the possibility of executive power, the Senate will sink into impotence. The answer would be to give the chairs of major committees the status, salaries and rewards of ministers, for they are, or should be, at least as important. There would have to be some control on the number of senators who would receive such rewards. A figure of half the number of ministers in the House of Representatives would seem fair, for this is about the proportion of Senate ministers under the present system.[106]

It is worth noting that in the United States the public profile, and the perceived political power, of the chairs of major congressional committees are much higher than that of most Cabinet ministers. If the positions of chair of the various committees in the Australian Senate were fairly spread among the political parties, one could reasonably expect a competent legislature. The chairs would owe their positions, not to which party was in power, but to their personal standing in the Senate.

The executive government

The size of the ministry has increased four-fold since federation. Typically about a third of the ministers come from the Senate, but they are not personally answerable to the House of Representatives. Many feel that the pool of potential ministerial talent in the Parliament is inadequate, but there is no possibility of bringing talented non-parliamentarians into the ministry, as is done in countries such as Sweden and the Netherlands. The Australian Constitution provides that a minister must be (or become within three months) a member of one of the houses of Parliament.

Of the twenty parliaments we are considering, only five[107] have a statutory or constitutional requirement for a minister to be a member of one of the houses of parliament. Yet in none of the fifteen parliaments where they would be free to do so have governments brought outsiders into the ministry, except as a temporary measure while a seat is found for a newly appointed minister. The failure of any of the fifteen parliaments to make use of this power stems in part from the belief that it would be contrary to the Westminster system. It is true that when Bagehot wrote in 1867, all ministers at Westminster were in either the Lords or the Commons. But, as Bagehot recognised, responsible government was then still evolving, and there have been substantial changes since his day; it is now unacceptable for the prime minister to be in the upper house, for instance.

Since the introduction of life peerages in 1958, it has been possible to bring an outsider directly into the UK ministry, to cover weaknesses or to recruit an outstanding individual. In Canada the prime minister can similarly appoint an outsider to the Senate, provided that there is a vacancy or one can be created by a resignation. A life peerage or a Senate position, both effectively granted by the prime minister, would certainly not be acceptable in the other parliaments, but they surely should be looking for alternative ways of achieving the same objective. The desirable requirements of ministers are their collective responsibility to the lower house and their personal answerability to that house. This personal answerability to the lower house is much more important than voting membership of that house.

Why then has none of the other parliaments tried to bring in outsiders? The answer lies in the aspirations of MPs. The chance of ministerial office is regarded as one of the spoils of electoral victory, and a prime minister or premier who brought in outsiders as ministers would have some very angry and disappointed MPs on his backbench. For that reason any attempt to amend the Australian Constitution to eliminate the requirement for a minister to be a member of one of the two houses would face implacable resistance from politicians (of both sides) and would certainly fail.

The only prospect of the change becoming acceptable is for the plunge to be taken by a government in one of the parliaments without a formal prohibition on an outsider becoming a minister. If such a minister clearly raised the standard of the Cabinet-and that would not be difficult-and at the same time it was demonstrated that responsible government did not disintegrate as a result of the appointment, the change might become acceptable. But such a dramatic step is unlikely.

The Governor-General

The position of the de facto Australian head of state, the Governor-General, is very anomalous. The powers of the office are not clearly defined, there is no security of tenure, and the selection and removal are effectively made by the prime minister. There have been problems in the past, and there will be in the future, unless the issues are tackled.

None of the other nineteen countries, states or provinces has given a lead in codifying the powers of the head of state. Only one has a solution to the problems of security of tenure and method of selection of the head of state. That country is of course the UK, but the solution adopted there would not be acceptable in any of the other nineteen parliaments.

In Australia, even when it was proposed to have a president to replace the Queen and her representative, the Governor-General, the powers of the president were not defined, but were left as they are in the existing Constitution. Because of the possibility that the president might actually use some of the extraordinary powers listed in the Constitution, powers which he is never intended to use, the republican model put to the voters included giving power to the prime minister to dismiss the president. Such an arrangement does not exist in any other republic.

Defining the powers of the head of state would be relatively easy, with one serious problem. The traumatic events of 1975, when the Governor-General dismissed the prime minister for not agreeing to ask for an election when the Senate was refusing to grant supply, have left deep party divisions on the issue. As things stand, a referendum on the powers of the head of state would founder on this issue. Similarly, it would not be possible to pass an amendment to the Constitution to remove the power of the Senate to block supply for the ‘ordinary annual services of the government’ (the New South Wales model). Such an amendment would be opposed on party lines, and would inevitably fail.

A fixed term for the House of Representatives would solve the problem, for then the Senate would lose any power to force an election by blocking supply. Once this was in place, the difficulty over drafting the powers of the head of state would disappear. The changes should be made when Australia makes the transition to a republic, which is inevitable though not imminent, for that is the moment when the attention of most Australians will be focussed on the Constitution and it will be the opportunity to fix the constitutional defects which have emerged in the past century. Referendums to amend the Constitution have been very difficult to pass in ordinary times, for the voters have shown themselves extremely conservative in their voting on such proposed changes. One of the reasons some people who favoured a republic voted against it in the 1999 referendum was that the model put to the voters missed the opportunity to bring the Constitution up to date, an opportunity which would not have come again if the 1999 model had been accepted.

It would be helpful if the Parliament could agree on the desirable powers of the head of state and then circulate them for discussion in the community, but this is such an obvious stepping stone on the path to a republic that the pro-monarchists would do their utmost to block it, and would almost certainly succeed. Nevertheless when the transition to a republic is finally made, the powers of the president must be clearly and realistically defined.

The results of the changes

If all these changes were made, the system of government in Australia would have the same outward form as it does now, but it would operate very differently.

The role of the House of Representatives would be unchanged. It would continue to be the efficient electoral college it has been in the past. It would also continue to be the place where the government explains its policies and its proposed laws, though in the absence of a powerful and independent Speaker many important policies would continue to be announced outside the House of Representatives. Legislation ‘by press release’ would however continue to be controlled by the Senate.

The opposition would have the chance to question and criticise the government’s actions, and if it chose, to put forward its alternatives. The quality of debates would be improved by adopting the Canadian procedure whereby there is a period at the end of each MP’s speech when there can be brief questions and statements on points raised by the MP in his or her speech, with the MP having right of reply. There might be, though this is a forlorn hope, an independent Speaker. The committees of the House would conduct investigations into matters the government wished or was prepared to have investigated. The House of Representatives would have no significant legislative role on controversial bills, merely registering the bills the government wished to have passed, but with non-controversial bills (some 90 per cent of the whole) House of Representatives committees would conduct examinations, inviting public comment and investigating matters raised by the Senate Scrutiny of Bills Committee.

The control of delegated legislation would be ignored. This would continue to be left to the Senate.

The term of the House of Representatives would be four years, shortened only if no government possessing the confidence of the House could be formed. The term could be extended for a further year by a three-quarters majority of both houses if war or other commotion rendered an election highly undesirable. The term could be further extended if the instability persisted.

The whole of the Senate would be elected concurrently with the House of Representatives, but would continue to use proportional representation. Ending the bias in favour of the less populous states is desirable, but would almost certainly be impossible to achieve. Fortunately the consistency of voting patterns across Australia results in the Senate representing the national balance of political views with reasonable accuracy.

There would be no ministers in the Senate. The Senate would be the legislature. Ministers from the House of Representatives would, by invitation, attend the Senate to handle government bills for which they were responsible, but of course they could not vote. The chairs of the major committees would have the status and rewards of ministers. The chairs would be divided among the various parties on a pro rata basis, so that the chairs would owe their position, not to who was in government, but to their standing in the Senate.

Ministers from the House of Representatives would be available for a question time in the Senate on a roster basis, with the initial question given to the minister in writing, the minister making a prepared answer, and supplementary questions on the minister’s answer being permitted until, in the opinion of the president, the subject was exhausted.

The Senate’s critical examination of controversial government bills would be much more thorough than at present, and the Senate would have much longer sessions-possibly twice as many sitting days a year-in order to get through its business. Legislative deadlocks between the two houses would be resolved by meetings between delegates from the two houses, and if these failed the matter could be resolved by a referendum if the government so wished.

The Senate would continue its excellent arrangements for the control of delegated legislation, but there would be more consultation with community groups in the preparation of regulations, impact analysis statements would accompany approved regulations, and it would be permissible to disallow parts of regulations rather than just the whole regulation. There would also be systematic arrangements for the repeal of outdated regulations.

The Senate would continue with the excellent work done by the Scrutiny of Bills Committee, and the control of unreasonable delays in proclaiming bills passed by the Parliament.

The deployment of the defence force for warlike operations or placing units in positions of danger would also require parliamentary approval, on the Canadian model. All treaties would be submitted to the Parliament for its approval of their ratification by the government. The UN covenants and conventions on human rights which Australia has ratified would be incorporated into domestic law, so Australian courts would make decisions on the contentious issues.

The Senate would also continue its useful work with investigative committees, keeping a closer eye on government business enterprises. It is to be hoped that the change in direction of the political aspirations of senators would reduce the amount of party electioneering on these committees.

The executive government would be chosen entirely from the House of Representatives, and the number of ministers (and departments) would be reduced, for having ministers in the Senate does inflate the size of the ministry. Although there is much to be said for bringing outsiders into the ministry, there is no likelihood of this happening in the near future; some other parliament will have to take the first step. The Cabinet would continue to control nearly all legislation, since its party normally controls the House of Representatives, where all government bills would originate.

How could the reforms be achieved?

In practical terms, how could these reforms be carried out? Some would require amendments to the Constitution, some would need acts of Parliament, while others could be done unilaterally by the government or the Senate, or achieved by negotiations between the government and the Senate.

By far the most important change would be the removal of ministers from the Senate. It is within the power of the government simply to cease appointing ministers from the Senate, but it would be important to put the change in the Constitution, for otherwise some senators would be constantly campaigning for the restoration of the possibility of ministerial office for senators and ignoring the development of the Senate as a legislature.

If the Senate became an independent legislature, not beholden to the government, its negotiating power would be greatly increased. It would have to persuade the government to present treaties to the Parliament for approval of their ratification, to involve the Parliament in the commitment of the defence force to warlike activities, to incorporate into Australian domestic law the UN covenants and conventions on human rights which Australia has ratified, to improve the arrangements for the production and disallowance of delegated legislation, to give the Senate reasonable control over the level of its own support staff, and to grant the chairs of major Senate committees the status and rewards of ministers. On the last, which might seem difficult to achieve, it should be remembered that the Senate has to approve the allowances of ministers, which gives it considerable leverage.

Increasing the term of Parliament to four years, making the term fixed, and giving the House of Representatives the power to extend the term in times of national crisis, would all require changes to the Constitution. These should not be impossible. After all, the lower house of every state parliament except Queensland now has a four year term, and New South Wales has a fixed term. The power to extend the life of parliament at a time of national crisis is an obvious necessity, which the other three national parliaments already have. A change in the method of resolving a legislative deadlock from an election to a referendum would also require a constitutional amendment. Elections have so obviously been inappropriate as a means of resolving such deadlocks, and Australians are so used to referendums, that the change should not be too difficult to achieve.

The remaining changes are all within the control of the Parliament-when it has the will.

For that is the crunch. How are the reforms to begin? The urgent requirement is to recognise the Australian system as it really is, and not to continue to pretend that it is still the system described so eloquently by Walter Bagehot more than a century ago, a system that no longer exists in that form anywhere. The debate over republicanism is directing some attention to Australia’s political institutions, but the debate is as yet unfocussed. Nevertheless the transition to a republic, if properly handled, offers a unique opportunity to make some other important parliamentary and constitutional changes.

The crucial first step would be the removal of ministers from the Senate. After that the other steps would follow almost inevitably, for the Senate is now a proud institution and would not accept obscure impotence. The transition to a republic, which is ultimately inevitable, will offer a unique chance to update our political system. We must seize it, for such a chance will not soon recur.

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